Barriers to paying fines

A2JLN research suggests that people experiencing social or economic disadvantage face a number of barriers to paying fines and negotiating the fines processing system. These include:

high fine amounts

the inability to manage the fines processing system

barriers to accessing court

barriers to seeking legal advice/assistance

barriers to seeking special consideration.

High fine amounts

For a person with secure employment and accommodation, receiving a penalty notice is unwelcome and inconvenient. However, for people on Centrelink benefits, people who have no income or a low or irregular income, paying a fine may be extremely difficult, if not impossible. Hamilton makes the comparison using the example of traffic fines:

A speeding fine of $125 represents one third of the weekly income of someone earning $20 000 a year but only 6 per cent of the weekly income of someone with the income of $100 000 … a $68 parking ticket can cause serious distress to a student or pensioner. The weekly food bill for some is no more than the bottle of wine for others.23

As described earlier, the common experience of accumulated fines can result in considerable fine related debt. Taking justice into custody identified the overall financial disadvantage of many prisoners, including the limited amount that inmates can earn in prison. Without other ways to 'repay' their debt, inmates can leave prison with substantial fine related debt, adding to the challenges they face in successfully reintegrating into the community post release.24

Table 1 provides examples of the fine amounts for certain offences, and, as a point of comparison, a sample of various fortnightly Centrelink payments. As can be seen, fines can pose a significant problem for people who earn or receive little or no money each week.

Table 1: Amounts of fines issued in NSW and Centrelink benefits

Offence

Fine Amount

Centrelink Benefit

Maximum rate per fortnight

Drink alcohol on train

$400

Disability Support Pension, single adult

$537.70*

Smoke on train or platform

Fail to hold valid ticket for train travel 25

$200

Newstart (unemployed/looking for work), single person over 21

$429.80*

Failure to comply with police direction to 'move on' 26

$220

Youth Allowance (unemployed or studying full-time), single person under 21

$348.10*

Unlawfully erect a structure on public land 27

* Note: Amounts at October 30, 2007

Furthermore, an on-the-spot fine is a set amount, irrespective of the person's individual circumstances or capacity to pay. In a recent review of the fine enforcement system in NSW, the NSW Sentencing Council observed as a problem:

The strict liability nature of most offences and fixed penalties, which do not permit …any allowance for the objective seriousness of the offence, or the personal circumstances of the offender, including their capacity to pay…28

A further issue raised by the NSW Sentencing Council was the lack of proportionality between the penalty amounts for different offences, and between penalty amounts and the objective seriousness of the offence. For instance, there is a $50 penalty for not wearing a bicycle helmet and a $75 fine for parking in a restricted area, but a $400 penalty for spitting on a train or smoking on a train station.29 These disparities can particularly impact upon disadvantaged people when the fine amounts are high for relatively minor offences.

Inability to manage the fines processing system

While the fines processing system in NSW has been recently streamlined (with the 'Infringement Processing Bureau' (IPB) now subsumed into SDRO), it remains a complicated multi-tiered system involving several agencies. Until very recently, accessible information about how to negotiate the system was very limited. Data from the A2JLN research program and other literature suggests this system has been difficult for people — particularly those people experiencing social or economic disadvantage — to understand and negotiate. The Shopfront Youth Legal Centre observed 'most young people still find the system virtually impossible to negotiate without competent advice and advocacy'.30

Furthermore, the fines processing system relies heavily on written information and correspondence. This presents particular barriers for people with limited literacy, cognitive impairment or those who communicate in a language other than English. The processes for challenging decisions or making alternative payment arrangements must be in writing and in some cases (e.g. to have an enforced fine postponed or written off) accompanied by a statement of financial or other circumstances.31 The emphasis on paper work and written correspondence may cause further difficulties for people who are homeless or experiencing other instability in their lives.32 For instance, as reminder notices are sent out by post, people without a permanent postal address do not receive such notification and may therefore be unaware that they have outstanding fines. Even if they do receive the fine they may not have the documentation (or capacity) required to complete the application form for the fine to be postponed or written off. Lack of documentation, even identification documents, was noted in the A2JLN research as a particular issue for homeless people and prisoners.33

Another barrier to disadvantaged people paying their fines has been that, until very recently, people could not pay in instalments until an enforcement order was received (at which point an additional $50 is (still) added to the original fine).34 In the case of some fines (e.g. placing feet on a train seat)35 this adds an additional 50 per cent to the amount needed to be paid. In No home, no justice? a caseworker described a homeless client who:

... rang IPB to see if they would accept payments by instalment. They said no, she had to wait until she had received a reminder notice from IPB and then it had gone to the SDRO.

— Caseworker, No home, no justice?36

Recent changes to the system now allow people to make part-payments of at least $20 a payment, as long as the full amount is paid by the due date of the penalty reminder notice.37

Another barrier faced by some people wishing to clear their debts is that fines from other states cannot be paid in NSW, or pooled together with fines accumulated in this State and paid as one amount. Service providers and homeless people interviewed in No home, no justice? spoke about the difficulties homeless and disadvantaged people face when trying to clear multiple fines from different states. Contributing to these difficulties are discrepancies in the ways that different states deal with fines and fine-related debt.38

For people in custody, the process of contacting the SDRO is made more difficult by the additional custodial barriers, over and above the sometimes limited personal capacity of inmates to both organise their affairs from jail and to afford to pay their fine debts. One inmate interviewed for Taking justice into custody described the bind he was in whereby he was unable to call the SDRO himself but his wife could not resolve the problem on his behalf either:

I owed some money … [for] court costs … I think it was $80. Fine, I can't get hold of youse, ex-wife can you? … Rings up, no F#&* off … Two weeks later I get another letter. You now owe $95 … Because you haven't contacted us and we've whacked on a little bit extra … Because it's not me ringing, it's the ex-wife, they don't care'. 'Oh well we've got to speak to him. We're not speaking to you' and you know what I mean? How can you get anywhere?

— Male prisoner, Taking justice into custody39

Barriers to accessing court

People issued with a penalty notice are given the option of electing to have their matter heard at court. To do so, people must fill in the court election form on the back of the notice and send the form to the SDRO before payment of the fine is due.40 The advantage of electing to go to court is having the opportunity to appeal the fine. However, as penalty notice amounts are generally set at a proportion of the maximum penalty there is the possibility that if a person elects to have a matter heard at court the fine amount to be paid will become higher than the on-the-spot amount.41 Further, if a court finds that a person is guilty of the offence for which they have been fined, the court may record a conviction which becomes part of the person's criminal record, as well as charge court costs.42 Some authors suggest that 'not paying the penalty and contesting the offence is made less attractive by the prospect of a heavier sanction if a court determines the matter, in addition to the cost and inconvenience of the proceedings themselves'.43 However, there is also evidence to suggest that if an appeal to the issuing authority of the fine is unsuccessful, going to court may result in the amount of the fine being reduced. Shopfront states that:

In our experience, the court will usually reduce the fine considerably, or impose another option such as a caution (or, for adults, a section 10 dismissal).44

By way of illustration, under section s5(1)(b) of the Rail Safety (General) Regulation 2003 (NSW) the statutory maximum penalty for travelling without a valid ticket is $550 and the on-the-spot fine for this offence is $200. Between August 2003 and March 2006, 2 763 people were sentenced in the local court of NSW for this offence. A total of 1 196 people (43%) were given a section 10 order,45 and 1 564 people (57%) were fined by the court. Three people were sentenced to a 'rising of the court'. The average fine amount was $100, with 80 per cent of these fines being between $50 and $200.46 These figures suggest that in some cases there may be benefits to electing to have a fine matter heard at court.

However, for many disadvantaged people, especially those unable to access legal advice or representation, going to court is a difficult and frightening experience, an experience to be avoided.47 Some, particularly those who have had negative experiences with the law previously, expressed little faith that a court would find in their favour:

….the legal system's just up there, it's against us, and there's nothing you can do about it, you just gotta try and avoid it.

— Male prisoner, Taking justice into custody48

Given the difficulty of paying the fine or going to court, fines are commonly not addressed.49 The Homeless Persons' Legal Service and the Public Interest Advocacy Centre recommend that penalty notices, reminder notices and enforcement orders should provide clearer information regarding court election and where to seek legal assistance.50

Barriers to seeking legal advice/assistance

The A2JLN data suggest that many people who are disadvantaged experience difficulties in accessing legal assistance and without access to appropriate legal assistance or advice, people may not elect to have their matter heard at court when it is appropriate to do so. Moreover, people may not have the skills to fill out the court election form without assistance. The barriers prohibiting disadvantaged people from accessing legal assistance include people:

not recognising that legal help is available for their problem51

not knowing where or how to seek help52

living in rural or regional areas which do not have appropriate services53

having other problems which take priority over addressing their fines and other legal problems.54

Barriers to seeking special consideration

If a person fails to pay a fine or elects to have the matter heard before a court within the due time, a penalty enforcement notice will be sent. At this point they can dispute the fine through the SDRO as long as they have supporting documentation (e.g. proof they were in hospital when they supposedly received a speeding fine). If they don't have the supporting documentation they can apply to the SDRO to have the fine annulled, at a fee of $50, at which point the SDRO will refer the matter to the local court. Given the barriers noted above, filling out such forms and participating in this appeal process may be difficult for some disadvantaged people. Furthermore, people who are homeless were reported to have competing priorities that may prevent them from conducting such appeals, for example, finding somewhere to live, dealing with medical issues and finding employment.55

At any time, including if the application for annulment is not successful, a person may apply to the Director of the SDRO to postpone or 'write-off' the fine. The Director has the discretion to do so if the person applying has 'severe financial, medical or domestic problems'. An application for postponement or cancellation of the fine must be made in writing and be accompanied by detailed documentation outlining the nature of the person's problem. This may include a doctor's letter in the case of a medical problem, evidence that the person does not own any possessions that could be sold to pay the fine and the person's social security details.56 To have the enforcement order written off, the applicant must prove not only to have been suffering hardship at the time, but that they will never be able to pay in future.57

The SDRO also has a Fine Enforcement Hardship Review Board made up of representatives from the OSR, the Treasury and the Attorney General's Department, which can review certain decisions made by the SDRO. This Board can review the SDRO's refusal to grant an application for time to pay or to write-off a fine due to financial, medical or personal hardship.58 The OSR 2007–08 Annual Report indicates that the Board reviewed 48 decisions of the SDRO, and upheld 25 of these.59